2012 PLP 212 (CLC)

SYED SAJJAD HASSAN SHAH, J.

Through the instant revision petition, Masroor Anwar petitioner-plaintiff has called in question the judgment and order passed by learned Additional District Judge-V, D.I. Khan dated 14-10-2009, whereby the appeal filed against the order dated 30-3-2009 of Civil Judge-I, D.I. Khan was dismissed.

2. Briefly stated the facts are that respondents-defendants moved an application under Order VII, Rule 11, C.P.C. seeking the rejection of the plaint being time-barred. The application was accepted by the learned trial Court and the plaint was dismissed under Order VII, Rule l1, C.P.C. The petitioner-plaintiff had filed a suit seeking the possession through pre-emption of the property transferred through sale Mutation No.232 attested on 21-5-2008 in favour of respondents-defendants Nos.1 to

3. The sale transaction was effected for sale consideration of Rs.6,800 however, according to the petitioner-plaintiff, an inflated amount of Rs.34,000/- was mentioned in the plaint.. The petitioner-plaintiff further averred that the above mentioned mutation was attested on 27-11-2007 but in collusion with the respondent No.4, respondents Nos.1 to 3 got entered attested on 21-5-2008 which entry is collusive and was made to deprive the petitioner-plaintiff from his legal right of pre-emption pertaining to the suit property, however, the recording of date of attestation is wrong, collusive, against the procedure and the result of fraud. The petitioner-plaintiff claimed that he is co-sharer, contiguous owner and participator in immunities and appendages in the suit property. He further asserted that he acquired the knowledge of sale on 4-6-2008 at 0730 hours 'sham-vela' in the shop of the petitioner and then and there announced his intention to pre-empt the suit-land. The information was conveyed by Muhammad Hashim. Later on, on 7-6-2008 the notices Talb-e-Ishhad through registered cover A/D were posted to the respondents-defendants. He further averred that the sale transaction was a secret transaction and no notice under section 12 of Pre-emption Act was given to the petitioner-plaintiff.

3. The suit was contested by the respondents-defendants. On 5-1-2000 the respondents-defendant moved an application for dismissal of suit on the ground that the same was hopelessly time-barred and not maintainable. The application was contested by the petitioner-plaintiff by filing his replication. However, on acceptance of the application, the suit of the petitioner-plaintiff was dismissed. Likewise, the appeal filed by the petitioner-plaintiff against the judgment of the learned trial Court was also dismissed. Hence, the instant revision petition.

4. The learned counsel for the petitioner-plaintiff contended that the learned trial Court while accepting the application under Order VII, Rule 11, C.P.C. dismissed the suit of the petitioner. He further contended that the impugned judgment and decree is suffering from sheer illegality and defect because the petitioner-plaintiff, categorically stated in his, plaint that the respondents Nos.1 to 3 in collusion with respondent No.4 made the tampering with the date of attestation of mutation from 21-5-2008 to 27-11-2007. He further contended that both the learned Courts below have not attended the arguments advanced on behalf of the petitioner-plaintiff in view of the provisions of law contained in sections 31 and 32 of the N.-W.F.P. Pre-emption Act, 1987, therefore, the judgments and orders of both the learned Courts below are liable to be set aside and suit of the petitioner-plaintiff may be restored to be decided on its merits.

5. As against that, the learned counsel for respondents Nos.1 to 3 controverted the arguments of learned counsel for the petitioner and contended that the suit of the petitioner-plaintiff was filed beyond the period of 120 days as prescribed under section 31 of the Act ibid, therefore, it was rightly dismissed. No illegality or irregularity much less jurisdictional error has been committed by both the Courts below.

6. I have considered the arguments of learned counsel for the parties and carefully perused the record.

7. A perusal of record reveals that the suit has been filed by the petitioner-plaintiff after expiry of period of limitation. As per provisions contained in section 31 of the N.-W.F.P. Pre-emption Act, 1987, the period of limitation has been prescribed as 120 days. Section 31 reads as under:-- "

31. Limitation.

The period of limitation for a suit to enforce a right of pre-eruption under this Act shall be four months from the date

(a) of the registration of the sale-deed; (b) of the attestation of the mutation, if the sale is made otherwise than through a registered sale-deed; (c) on which the vendee takes physical possession of the property if the sale is made otherwise than through a registered sale-deed or a mutation; or (d) of knowledge by the pre-emptor, if the sale is not covered under paragraph(a) or paragraph(b) or paragraph (c)."

8. It appears from the above provision that extension in period of limitation for filing the suit has not been provided therein. The period would be computed from the date of attestation of sale made through mutation. The pre-emptor is required to file the suit within a period of 120 days as provided under the afore-stated provisions of law, meaning thereby that if the pre-emptor has failed to file the suit within the specified period, his suit would not be maintainable, as there is no provision available in the Act ibid that the suit can be filed within 120 days from the date of knowledge of the pre-emptor about sale transaction.

9. The petitioner-plaintiff has asserted in his plaint that the sale was concealed by the respondents and the respondent No.4 with the collusion of respondents Nos.1 to 3, tampered with the actual date of attestation of sale mutation i.e. 21-5-2008 and mentioned it as 27-11-2007. The petitioner-plainiff has not filed the copy of mutation on the record of the instant petition in order to show tampering of date therein. Had this been the genuine allegation of the petitioner-plaintiff, he would have initiated legal action against the respondent No.4. However, the period of limitation as prescribed under section 31 of the Act ibid cannot be enlarged on the grounds agitated by the petitioner-plaintiff. Moreover, the petitioner-plaintiff has also averred in his plaint that the vendor has not issued any notice of intention to sell under section 12 of the Act ibid. The provisions contained in section 12 of the Act are reproduced as under:-- "

12. Notice of intention to sell.

(1) Where any person proposes to sell immovable property in respect of which a right of pre-emption exists, he shall give notice to all such persons having such right of the price at which he is going to sell the property. (2) The notice under subsection (1) shall be given through any Court within the local limits of whose jurisdiction such immovable property is situated and shall be deemed sufficiently given if it be stuck upon the main entrance of a mosque and on any other public place of the village, city or place where the property is situated."

10. A bare perusal of the above cited provision reveals that the vendor has to issue the notice to all the persons who have right of pre-emption and that too through any Court within the local limits of whose jurisdiction the property being sold is situated. The above notice is required to be issued by the vendor prior to the sale transaction. Non-issuing of notice by the vendor would not create any right in favour of petitioner-plaintiff as no consequences have been provided under the said provision. Moreover, non-issuance of notice has no link or having overriding effect over the provisions of section 31 of the N.-W.F.P. Pre-emption Act, 1987, wherein the time limit for pre-emption suit is provided. In such eventuality, the delay in filing suit for pre-emption is not only apparent but is also admitted by pre-emptor in his replication. As such, any violation on the part of vendor would not be taken as ground by the petitioner-plaintiff for extension of time in filing suit, as there is no nexus of provisions of sections 12 and 31 of the N.-W.F.P. Pre-emption Act, 1987.

11. The petitioner-plaintiff has not agitated in his plaint about the non-fulfilment of requirements of section 32 of the N.-W.F.P. Pre-emption Act, 1998. However, for the first time, this point was agitated before the learned appellate Court. The appellate Court relied on 2004 SCMR 1941 and dismissed the appeal on the ground that the suit of the petitioner-plaintiff apparently appears to be time-barred and the plaint was rightly rejected summarily by learned trial Court. The learned counsel for the petitioner-plaintiff again argued on the same ground before this Court, but his arguments cannot be appreciated, as he has not agitated the point in his plaint.

12. Even otherwise, a comparative study of sections 31 and 32 of the Act would make it clear that the provisions with regard to public notice by the Revenue Officer in case of mutation and Registrar in the case of registered deed have no nexus with the period of limitation prescribed in section 31 of the Act for filing a suit regarding sale transaction made through the attestation of mutation.

13. For the reasons mentioned above, I am of the view that the judgments of the Courts below are quite in accordance with law and do not suffer from any legal infirmity, or illegality. The same are maintained and resultantly, the revision petition being without force and substance is hereby dismissed. H.B.T./238/P Petition dismissed.